November 18, 2014 11:14AM

Federalism Should Trump the Drug War

Americans are angry with their politicians but nuanced in their political opinions.  Voters in Alaska simultaneously ousted their Democratic Senator and legalized the use of marijuana.  Floridians voted to allow the use of medicinal marijuana and reelected Republican Gov. Rick Scott.

In fact, Milton Friedman and William F. Buckley long argued against drug prohibition.  The electorate appears to be moving their way.

Which makes sense.  If you want to limit government and protect individual liberty, it’s impossible to ignore the ill consequences of arresting and imprisoning millions of people for using illicit substances. 

Drug use is bad.  Arresting people for using drugs is worse. 

But conservatives have another reason to abandon the drug war: federalism.

The Drug War has poisoned almost everything it touches.  The rule of law suffers.  Lawyers speak of the drug exception to the Fourth Amendment, since judges often sacrifice Fourth Amendment protections when drugs are involved. 

Constitutional interpretation is malformed.  In Gonzales v. Raich the Supreme Court held that Uncle Sam could regulate someone who grew marijuana for personal consumption under the interstate Commerce Clause.  The reasoning of conservative jurist Antonin Scalia was used by the legal Left to argue that ObamaCare was constitutional.

Federalism is another victim of the Drug War.  Many conservatives complain about the over-criminalization of life, with Washington encroaching on an area that's traditionally a matter of state authority.

As some states decriminalized drug use and others allowed pot consumption for medical purposes, the federal government continued to prosecute all users and dealers.  The Tuesday election has provided another potential conflict. 

Citizens in Alaska and Oregon joined those in Colorado and Washington in legalizing marijuana.  While the national government can continue separately prosecuting users, it can’t force states to toss people in jail for using drugs.

Washington, D.C. is different.  District voters approved legalization by a more than two-to-one margin. 

However, since D.C. is under federal control, Congress can overturn District measures by passing a disapproval resolution within 60 days.  Or legislators can apply annual riders blocking measures from taking effect, a Republican tactic used for 11 years straight against a medical marijuana initiative passed by D.C. in 1998.

Maryland Rep. Andy Harris is leading the latest charge.  Earlier this year he won House approval for a legislative rider to block the D.C. city council’s vote to decriminalize marijuana, though the Senate refused to go along.

The GOP Senate takeover could give Harris a new opportunity.  But Sen. Rand Paul (R-KY.) is set to take over the District oversight committee in that body and is skeptical of federal preemption.

Whatever one thinks of the substantive issue—no surprise, I favor legalization—Washington should not dictate policy to other levels of government.  The fact that the District is a federal enclave doesn’t change the issue.

Congress can legitimately oversee a true federal zone.  But most of the District is irrelevant to the national government’s operations.  Residents should be allowed to manage their own affairs.  It is highly intrusive, even dictatorial, for Uncle Sam to insist that a subordinate government criminalize a particular activity against the wishes of the majority of the latter’s people.  

Moreover, while Congress can prevent the District from officially legalizing pot use, in practice Congress cannot force the District to enforce prohibition.   So what’s the point?

Federalism long has been a position of convenience for most politicians.  They tend to recognize state authority only when doing so advances their substantive ends. 

The District’s vote on drugs gives the GOP an opportunity to put principle before politics.  Voters in the District of Columbia, no less than those in Alaska, Colorado, Oregon, and Washington, should be able to decide on their criminal laws. 

As I argue on American Spectator online:  “More than anyone else, conservatives should affirm this right (and responsibility).  Let D.C. join the great laboratory of democracy known as the American states.”